I tell my clients that your will is your last act of parenting so make it a loving act. This approach shifts your perspective. Most of us think of wills as being about property distribution. They are, of course, but they also are in fact a message about you and how much you care about leaving this world kindly, wisely, and efficiently. Your children, whether you intend it or not, will derive a message from your estate plan. Think hard about what you want to say. The first step is to establish a plan. Those parents who do not have wills fail, in my opinion, to fulfill their responsibilities. If both parents die without wills leaving behind minor children, two things will happen that will cause much stress, legal fees, and negative consequences that can last literally for years. One is that a court will determine who will be guardian of your children with no input from you. The guardian is the person who stands in your shoes and makes all of the parenting decisions until your child is eighteen. They will decide which school your child will attend, which religion, if any, your child will practice, what food he will eat, what type of health care he will have, among the many countless decisions that a parent must make. The court will look to your families first to find a guardian. If you execute a will, you can nominate a guardian. The court will give first consideration to the guardian you recommend and then decide whether it is in the best interest of the child to be in the care of your nominated guardian. If the nominated person turns out, in the court’s view, to be unable or unfit to serve as guardian, then if you have named alternates the court will consider those next in the order of your preference. Without your guidance, it is entirely possible that someone you believe is not right for the role will end up acting as parent to your children. The second thing that will occur if both parents die without wills leaving minor children is that any assets you own will be placed in a custodianship through the court system. The court will choose the person who has control of the money and the law requires the custodian to account annually for the assets in the custodian’s control. The custodian will have to be bonded and will be required to submit an accounting to the clerk, pay a tax to the clerk on the value of the assets, and prove to the penny what has come in to the accounts and what has been paid out. In addition, distributions of principal must be approved by the clerk. Further, an attorney often assists the custodian in preparing the accounting and you know what that means…legal fees. Finally, your child will inherit outright at eighteen what remains in custodianship. You can avoid custodianship by establishing a trust for your children in your will or through a revocable trust. You can then name the person who will be in charge of the money (the trustee) along with alternates. No bond will be required and annual accountings are not necessary. You can decide at what age the trust will terminate (many choose age twenty-five or later). You can state what the money will be used for if you wish (no cars to be purchased with the money, weddings to be paid for, travel abroad, education, etc.). As a parent I am very aware that answering these questions is difficult, to say the least. No one can be you and contemplating such a tragic scenario can make the toughest of us shut down. But I believe the hardship of making these preparations is part of being a loving parent. You do not want your child to grow up wondering why you did not love them enough to set things up right.
Originally published in Southern Neighbor, December 2009